from the pernicious-law dept

There seems to be a new talking point from government officials since a federal judge ruled NSA surveillance is likely unconstitutional last week: if Edward Snowden thinks he's a whistleblower, he should come back and stand trial.

National Security Advisor Susan Rice said on 60 Minutes Sunday, “We believe he should come back, he should be sent back, and he should have his day in court.” Former CIA deputy director Mike Morell made similar statements this weekend, as did Rep. Mike Rogers (while also making outright false claims about Snowden at the same time). Even NSA reform advocate Sen. Mark Udall said, "He ought to stand on his own two feet. He ought to make his case. Come home, make the case that somehow there was a higher purpose here.”

These statements belie a fundamental misunderstanding about how Espionage Act prosecutions work.

If Edward Snowden comes back to the US to face trial, it is likely he will not be able to tell a jury why he did what he did, and what happened because of his actions. Contrary to common sense, there is no public interest exception to the Espionage Act. Prosecutors in recent cases have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant—and are therefore inadmissible in court.

This is why rarely, if ever, whistleblowers go to trial when they’re charged under the Espionage Act, and why the law—a relic from World War I—is so pernicious. John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States.

In the ongoing leak trial of former State Department official Stephen Kim, the judge recently ruled that the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” (emphasis added)

The same scenario just played out in the Chelsea Manning trial this summer. Manning's defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible until sentencing. Manning was sentenced to thirty-five years in jail—longer than most actual spies under the Espionage Act.

If the same holds true in Snowden’s case, the administration will be able to exclude almost all knowledge beneficial to his case from a jury until he’s already been found guilty of felonies that will have him facing decades, if not life, in jail.

This would mean Snowden could not be able to tell the jury that his intent was to inform the American public about the government’s secret interpretations of laws used to justify spying on millions of citizens without their knowledge, as opposed to selling secrets to hostile countries for their advantage.

He might not even be able to bring up the fact that a US judge ruled that surveillance he exposed was ruled to likely be unconstitutional.

The jury would also not be able to hear how there’s been no demonstrable harm to the United States since much of this information has been published. And if the prosecution was able to prove there was some harm to the US, Snowden wouldn’t be able to explain that the enormous public benefits of these disclosures far outweighed any perceived harm.

Every American should be outraged that leakers and whistleblowers are being prosecuted under an espionage statute without ever having to show they meant to harm the U.S. or that any harm actually occurred. Given there are two dozen bills calling for the reform of the NSA in the wake of Snowden's revelations, there should also be reform of the Espionage Act, so it cannot be used by the government as a sword to protect itself from accountability.

After more than four and a half hours of proceedings, the government wrapped up its closing argument in the trial of Pfc. Bradley Manning, the soldier being prosecuted for disclosing information to WikiLeaks. Prosecutors called him an “anarchist,” a “hacker,” and a “traitor” before the argument was over.

Really? All three claims are flat out ridiculous. From the very beginning Manning was quite clear in his motives, which were about making sure the American public was better informed. The bogus traitor claims have been mentioned before, and seem to have no basis in reality. But the anarchy one is a new one. As Kevin Gosztola explains:

Quoting chat logs between hacker and government informant Adrian Lamo and Manning, Major Ashden Fein said that he expected “worldwide anarchy” would occur after releasing the diplomatic cables and these were not the “words of a humanist but the words of an anarchist.” He also said he was a “hacker” and not a humanist.

Of course, if you read the actual chat logs and put the statement back in context you realize it's not the words of an anarchist at all. That's just some boasting about how releasing these files will have a major impact. But, as he immediately explains in the following statements, his goal is to create change and stop the US government from lying. He notes that releasing these documents "might actually change something" in how the US goes about its business. He's not talking about anarchy, he's talking about actually having a representative government that doesn't lie and deceive all the time.

Of course, the big claim that the government is trying to make is that Manning knowingly "aided the enemy":

For the “aiding the enemy” charge, which if convicted could lead to maximum sentence of life in prison, Fein argued that Manning had deliberately transmitted the “Collateral Murder” video, certain State Department information and military incident reports from Iraq and Afghanistan.

But how is revealing factual information about the US military screwing up and then trying to cover it up "aiding the enemy." It seems like, once again, that's only true if "the enemy" is the American public and you have information you want to hide from them. In fact, the government appears to argue that any release of information to the public can be seen as "aiding the enemy"

“The public included the enemy and he knew that as an intelligence analyst,” the government stated. The government added that this was not public data. It was US government information that Manning was trained to use.

But, under that argument any journalist or any person who publishes anything that might make Al Qaeda happy is "aiding the enemy." That's crazy.

Manning's defense will give its closing argument on Friday, and then... we wait for the judge to decide.

from the case-moving-forward dept

The Justice Department desperately tried to delay the ACLU's recently filed lawsuit over the NSA's surveillance efforts. The DOJ claimed that, since the intelligence agencies have been working to declassify info on those programs, any lawsuit should wait until those decisions are made. Thankfully, however, Judge William Pauley recognized that justice delayed is justice denied and rejected that argument. The case will move forward with motions filed by the end of August and the case to begin by November.

from the 20-years-for-attempting-to-upset-the-status-quo dept

Bradley Manning is currently on trial, charged with "aiding an enemy" (including "classified" enemies) for turning over sensitive documents to Wikileaks. As Mike pointed out earlier, this latter charge doesn't add up. Manning never handed over anything directly to any enemies of America, classified or otherwise, and any documents these unnamed enemies had in their possession were already publicly available.

Q. At one point you asked him what his end game was, correct? A. Yes, I did. Q. And he told you, hopefully worldwide discussions, debates and reforms? A. Yes, he did. Q. And he said he wanted people to see the truth? A. Correct. Q. He said without information you can't make informed decision as a whole? A. Yes, he did. Q. And he told you to, he was hoping that people would actually change if they saw the information? A. Correct.

At one point, the discussion turned to the possibility of aiding US enemies, but Manning still refused to view the information he had acquired as anything other than a contribution to public knowledge.

Q. And at one point you asked him why he didn't just sell the information to Russia or China? A. Correct. Q. And he told you that the information belonged in the public domain? A. Yes, he did. Q. He believed that information was in the public domain and should be for the public good? A. Yes.

And when the questions became more direct, Lamo's answers became correspondingly vague.

Q. At anytime did he say he had no loyalty to America? A. Not in those words, no. Q. At anytime did he say the American flag didn't mean anything to him? A. No. Q. At anytime did he say he wanted to help the enemy? A. Not in those words, no.

In what words, then? The transcripts of the chats between Lamo and Manning are public. There's no indication Manning wished to aid the enemy. There was the potential for harm to exposed operatives and sources, but that was greatly mitigated by the delay between delivery and publication of the documents, not to mention Lamo bringing this to the FBI's attention after the initial chat session. But the military has chosen to view the embarrassment and inconvenience caused by the documents' release as "aiding the enemy" -- whatever hurts us makes them stronger.

from the can't-have-an-accurate-record-now,-can-we dept

The attempts to limit the press during the Bradley Manning trial have been somewhat ridiculous. The press hasn't been allowed to record anything, even though someone clearly did so surreptitiously. Furthermore, there's been no plan for an official court transcript of the proceedings either. About a month ago, the Freedom of the Press Foundation launched a crowdfunding campaign to try to hire their own professional stenographer to attend the trail to make a transcript. They even had some top press publications, including the Guardian, Forbes and the Verge, apply for an extra press pass for the crowdfunded stenographer. The military refused. But, more ridiculously, they claimed it was a space issue, though that's an issue they could easily fix.

The Army received over 350 media applications for the trial, but only granted 70 to be present in the media room. In an emailed statement, the MDW Media Desk stated: “Your understanding of our space limitations based on building fire codes is greatly appreciated.”

In previous hearings, the Army has opened a public overflow theater with live audio and video streaming of the hearing. Additionally, the Army has sole discretion over which room(s) to designate as media rooms – including how many rooms to make available.

A large group of established news organizations -- including the LA Times, NPR, the New Yorker, Fox News, Newsweek, Bloomberg and NY Magazine -- have all asked the military to open up two additional press passes for stenographers (two so that they can overlap while switching shifts). The judge in the case, on Monday, announced that it would be okay for a stenographer to record a transcript using a stenography machine, which is great... except that without a press pass, they still can't get the stenographer in. Thankfully, for Monday, a Bradley Manning supporter with a pass gave it up to the stenographer, but it's somewhat ridiculous that it had to even come to that.

At this point, it really just seems like the Army is being incredibly petty over this case in its desire to limit the details of coverage.

from the probably-not dept

After the jury decision in the Apple/Samsung patent fight in the US came out, lots of people pointed to statements from the foreman of the jury, Vel Hogan, that raised serious questions about Hogan's understanding of the legal issues at play, especially pertaining to prior art. It also suggested possible bias. Still, even with all of that, it's very, very difficult to get a jury ruling thrown out on jury misconduct -- but Samsung has unveiled one bit of info that Judge Lucy Koh has now agreed to review: whether or not Hogan needed to reveal that he had a legal dispute with Seagate, a former Hogan employer, who is also a major strategic partner of Samsung. Koh is also asking Apple's lawyers to reveal if they knew this info, which Samsung's lawyers did not.

At the December 6, 2012 hearing, the Court will consider the questions of whether the jury foreperson concealed information during voir dire, whether any concealed information was material, and whether any concealment constituted misconduct. An assessment of such issues is intertwined with the question of whether and when Apple had a duty to disclose the circumstances and timing of its discovery of information about the foreperson.

While this is an interesting move, and worth watching, I doubt much will come out of it. Hogan did admit that he'd had legal issues in the past with a former employer, but no one delved into who or why.

During voir dire, Hogan did disclose that he had been involved in litigation with a former partner when the judge asked him if he had ever been involved in litigation.

Hogan has noted, in response to Samsung's allegations, that the judge didn't ask for a complete listing of all the lawsuits he had been involved with.

Again, most of this aspect is just a sideshow to the eventual long series of appeals that will come in this case -- and I doubt that the judge will find misconduct here. But just the fact that judge is considering it makes it worth following.

from the stay-quiet dept

Former Illinois Gov. Rod Blagojevich hasn't exactly been one to stay quiet since being removed from office and charged with corruption. If anything, he's worked hard to make sure that the limelight remains on him as much as possible, including participating in a variety of publicity stunts. The latest was his announced plan to live tweet his own trial on Twitter, a plan that appears to have been quickly shot down by the judge in the trial, who banned him from tweeting from the courtroom. He is allowed to do what he wants outside of the courtroom, though the judge warned him that anything he says could come back to haunt him in court:

The ex-governor will be allowed to continue speaking with the media and appearing on radio programs -- at his own peril.

Zagel told Blagojevich that his sound bites, quips and "repeated public statements" to the cameras could be used against him if he testifies during the trial.

"I'm quite sure it has been explained by his attorneys," Zagel said.

While we've seen stories about jurors tweeting, this is the first I can remember of a defendant wanting to live tweet his own trial...

from the isn't-that-what-they-count-on? dept

A bunch of folks have been sending in Nate Anderson's article about how ignoring an RIAA lawsuit may be "cheaper" than going to trial. It makes for a nice storyline, but it's really not entirely accurate. It's based on the fact that Judge Gertner, who was the judge in the Joel Tenenbaum trial, just handed out some default judgments against people who never bothered to respond at all to an RIAA lawsuit over file sharing. In each case, Gertner chose the statutory minimum of $750 per song, much less than Jammie Thomas got in her two trials and Joel Tenenbaum received in his trial.

But, of course, these aren't apples-to-apples comparisons (not to mention that we're dealing with a classic "small sample size" problem). Specifically, the three trials involved a combination of poorly argued defenses that made the defendants look worse, combined with defendants themselves who both admitted to lying. And, add to that the fact that they're jury trials, where juries tend to give out larger awards than a judge does, and it's really not a huge surprise. If you had defendants who actually had a real case, combined with a defense team that actually argued the specific points, things might have been different. But, it looks like, with both Thomas and Tenenbaum, the goal was to create a bigger case that can get attention at higher levels to take on certain aspects of copyright law itself.

And, of course, as an addendum on the article notes, it's still probably cheaper to settle up in the first place, but that's exactly how the RIAA intends things to be. It's the same principle on which an extortion scam works: it's cheaper to pay up than to fight it. But, that doesn't mean it's right to just shut up and pay -- especially if the accused is innocent. As much as the RIAA must love Anderson's article, because it encourages people not to fight its lawsuits, the reality is a lot more complicated.

from the well,-that-seems-fair... dept

As The Pirate Bay gears up for the appeal of its trial in Sweden, it's worth noting that the judge chosen to hear the trial happens to be the same one who was removed from reviewing the fairness of the original trial because she happens to belong to the same pro-stronger copyright group as the original judge. How is that fair?

from the that-would-be-a-mistrial dept

We recently wrote about a trial where there were concerns that a jury member was sending Twitter messages during the trial, but that's nothing compared to text messaging while on the witness stand. Yes, apparently a guy who was being questioned as a witness, used a break in the action (as the judge spoke to the lawyers in the case) to text message with his boss, who was also in the court room and at the plaintiff table. After being alerted to this by a "courtroom spectator," the judge declared a mistrial:

"Let me be really frank about this," the judge said. "I never had this happen before. This is completely outrageous, absolutely outrageous."

Toledano responded, "It was on a break."

Silverman shot back: "It doesn't matter. You are communicating about the case and the subject matter of the case with a witness who is currently under oath and before the jury,"

Toledano said, "I'm sorry, after we took the break, it's not in the middle."

The judge explained himself again.

"It's a problem on your communicating with the witness about his testimony whether it's before the break, after the break and during the break while he's testifying," he said. "This is outrageous."

These stories of technology in the courtroom seem to be coming up more and more frequently. It seems as though very few people have really thought through the implications of the many channels of communication that every individual now has with them, and how that changes common assumptions about how people can and will communicate, even in "constrained" areas.